FCC Reopens Net Neutrality Debate, Seeking “Substantive” Public Comment

Submitted on May 18, 2017

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On May 18, 2017, the Republican commissioners on the Federal Communications Commission voted to reopen the debate over how to best preserve an Open Internet. Launching a proceeding seeking “substantive” public comment, FCC Chairman Ajit Pai proposed undoing the only legal basis for network neutrality rules that has survived court challenge. The unreleased Notice of Proposed Rulemaking (NPRM) proposes to reverse the FCC’s 2015 ruling that the transmission component of broadband Internet access service (BIAS) is a telecommunications service. The NPRM also proposes to 1) return to the FCC’s original classification of mobile broadband Internet access service as a private mobile service; and 2) eliminate the Internet conduct standard created by the 2015 Order. Finally, the NPRM questions the need for the FCC’s so-called “bright-line rules” which prohibit broadband providers from a) blocking access to legal content, applications, services, or non-harmful devices; b) impairing or degrading lawful Internet traffic on the basis of content, applications, services, or non-harmful devices; and c) favoring some lawful Internet traffic over other lawful traffic in exchange for consideration of any kind—in other words, no "fast lanes." (This rule also bans ISPs from prioritizing content and services of their affiliates.)

FCC Chairman Ajit Pai said the rewrite would undo the current rules’ overreach, and help spur investment in broadband, which he claims has suffered because broadband providers told him so. "The Internet was not broken in 2015," Chairman Pai said, repeating his often-chosen turn of phrase. "The utility-style regulations known as Title II were and are like the proverbial sledgehammer being wielded against the flea. Except that here, there was no flea." Chairman Pai and his Republican colleague, Commissioner Mike O'Rielly, said the new review of net neutrality will include a cost-benefit analysis, which they say wasn't done in 2015.

FCC Commissioner Mignon Clyburn, the lone Democratic on the FCC, "vociferously" opposed Pai's proposal, calling it "no-touch" rather than light-touch regulation. "If you unequivocally trust that your broadband provider will always put the public interest over self-interest or the interest of their stockholders, then the 'Destroying Internet Freedom' [proposal] is for you," she said. "The endgame appears to be no-touch regulation," said Clyburn, "and a wholesale destruction of the FCC's public interest authority in the 21st century."

The plan "contains a hollow theory of trickle-down Internet economics, suggesting that if we just remove enough regulations from your broadband provider, they will automatically improve your service, pass along discounts from those speculative savings, deploy more infrastructure with haste, and treat edge providers fairly," Commissioner Clyburn said. "It contains ideological interpretive whiplash, boldly proposing to gut the very same consumer and competition protections that have been twice-upheld by the courts.”

Reaction From Congress – A Legislative Fix in the Making?

Republican lawmakers have proposed converting the FCC's Open Internet regulations into a bill of some form, but Democrats — concerned that the results could be much weaker than the current rules — appear unmoved. They are currently gearing up for a grassroots battle similar to the kind that defeated the House Republican health care plan.

On the Senate floor, Senate Commerce Committee Chairman John Thune (R-SD) said,

We should not, however, view the FCC’s action today as a final outcome. While I commend Chairman Ajit Pai and Commissioner Mike O’Rielly for taking this necessary step, I fully recognize that today’s action alone does not create ideal certainty for the internet. There is more work yet to do. In politics, it is rare to get a second chance at bipartisan compromise, yet right now we have an opportunity to accomplish what eluded us two years ago—clear and certain rules in statute to protect the open internet. We have another chance to sit down, to discuss every stakeholder’s concerns, and to work toward the common goal of protecting the internet. While the FCC’s 2015 order may soon be consigned to the dustbin of history, the last few months have shown that political winds can and often do shift suddenly. To my colleagues in both the majority and minority, the only way to truly provide legal and political certainty for open internet protections is for Congress to pass bipartisan legislation. We need a statute offering clear and enduring rules that balance innovation and investment throughout the entire internet ecosystem. In crafting rules, we need to listen to the concerns of all Americans who support an open internet but who may have differing opinions about the greatest threats to online freedom.

House Communications and Technology Subcommittee Chairman Marsha Blackburn (R-TN) said, “Today the FCC took an important step to roll back the Obama administration’s efforts to subject the internet to heavy-handed government regulation. Now the public has the opportunity to weigh in on the FCC’s proposed rule before the FCC begins to draft their final order. I remain hopeful that Republicans and Democrats, internet service providers, edge providers and the internet community as a whole can come together and work towards a solution.

“While Chairman Pai seems to have made his decision to get rid of these rules before starting the proceedings in earnest, he has an obligation to keep an open mind in this process, and take seriously the comments from the public. I plan to hold him to that obligation—to make sure that the people who weigh in are heard, as they should be,” said Sen. Brian Schatz (D-Hawaii). “This fight is just starting. Just like in 2014, the public now has the opportunity to stand up, be heard, and influence the outcome. It will take millions of people standing up, just like they did before, to say that the internet needs to stay free and open. That’s what it will take to win.”

Sen. Ed Markey (D-MA) one of Pai’s most vocal critics in Congress, spoke to a crowd outside the FCC’s offices. “We’re gonna fight this rule. We’re going to fight it at the FCC. We’re going to make sure that the FCC is flooded with comments that the net neutrality rules are working and that there is no problem and that they should not dismantle them,” said Sen Markey before holding up a sign that said “Never Gonna Give Up Net Neutrality,” as Rick Astley’s “Never Gonna Give You Up” played in the background.

The Public’s Input – Does It Matter?

The Los Angeles Times’ Jim Puzzanghera had a dire warning for the hundreds of thousands of people publicly urging the FCC to keep its tough net neutrality rules: You might be wasting your time.

“Commission outcomes are not and cannot be decided by poll numbers or letter counts,” Commissioner O’Rielly said in a speech last month. A top aide to Chairman Pai echoed that view.

Commissioners Pai and O’Rielly could be taking a big risk if they dismiss public sentiment, said Gigi Sohn, who served as counselor to former FCC Chairman Tom Wheeler, who presiding when the FCC wrote the 2015 Open Internet rules. “I say defy the American people at your own peril,” Sohn said. “To the extent the FCC is supposed to act in ‘the public convenience interest and necessity,’ it might be important what the people think,” she said.

Addressing reports of bots in the commenting system, Chairman Pai urged commenters to participate in an "honest and forthright way."

"Thankfully, our rulemaking proceeding is not decided like a Dancing With The Stars contest, since counts of comments submitted have only so much value," Commissioner O'Rielly said, adding: "Instead of operating in economics-free zone where the benefits of the rules are assumed to outweigh any cost, commenters will need to provide evidence to support their arguments that the rules are or are not needed."

The two Republicans shouldn’t be swayed by simple comment counts this time either, said Jeffrey Eisenach, a visiting scholar at the conservative-leaning American Enterprise Institute think tank. (Eisenach advised the Trump transition team on telecommunications policy.) “The job of the FCC is to make decisions based on the evidence about what are very complex markets and technologies,” he said. Eisenach and others have said that many of the public comments aren’t substantive. “When you get millions of comments that basically say, ‘Net neutrality is a principle that has to be upheld. I don’t really know the facts. If you vote against this rule, you’re the scum of the Earth,’ that’s not the kind of evidence that the commission should be weighing,” Eisenach said.

But Sohn said Americans are busy and even filing a short statement to the FCC shows that the issue is important to them. The agency’s leaders should care about that. “To simply kind of wipe your hands of the public submissions is really not what an administrative agency should be doing,” she said. “They’ve got to take them into account.”

Apart from Pai and O’Rielly’s receptiveness to public input, the FCC’s digital operations that receive comments has been suspect of late. The system suffered downtime after a rush of comments spurred by comedian John Oliver's HBO show. The FCC said that downtime was caused not by legitimate comments, but by distributed denial-of-service (DDoS) attacks. Net neutrality activists accused the FCC of lying about the downtime cause, and two Democratic senators asked Pai to provide specific details about the attacks and the FCC's plans for keeping the comment site running during the net neutrality debate.

There have also been hundreds of thousands of identical anti-net neutrality comments that were apparently generated by bots using names taken from data breaches, but the FCC has not publicly addressed this problem. Chairman Pai was asked about the commenting system’s problems more than once during a post-vote press conference. Displaying his strong leadership, he deferred the questions to the FCC’s information technology staff which was not in the room.

"[Let's] be clear here about Pai’s apparent priorities," wrote Harold Feld, senior VP at Public Knowledge. "Pai has no time or interest to tell us what steps he has taken to address an alleged cyber attack. Pai has no time or interest to condemn a pro-Pai identity stealing bot whose operator is hacking the FCC’s public comment system the way Putin hacked the Democratic National Committee. What do Pai and his staff have time for? Making sure the whole world knows that some of the comments were mean to Pai. Unlike John Oliver, who admonished Net Neutrality supporters to “stop it! Don’t do that!”, Pai has not admonished his supporters to “stop it! Don’t do that” for actual illegal hacking and identity theft. Either Pai thinks that illegal hack attacks that support him are fine, or Pai thinks letting us know how sad he feels when people call him names outweighs actually condemning (let alone criminally investigating) illegal conduct by his supporters."

What's Next?

The FCC's May 17 action begins a three-month public-comment period. Initial comments must be filed by July 17; with another 30 days for replies to those comments by Aug. 16. But net neutrality policy making may be a dance between the FCC and Congress -- if Congress can-can, that is.

Pai’s proposed net neutrality reforms amount to a regulatory “punt” to Congress, says Mozilla Foundation Executive Director Mark Surman, who is one of the tech-industry leaders at the forefront of the net neutrality fight. Chairman Pai doesn’t think the FCC has the authority to regulate internet providers under Title II, believing instead that Congress needs to pass a law to either give the FCC this authority, or create a new entity altogether.

“You could say Pai is almost forcing Congress’ hand,” said Hal Singer, a Title II critic and senior fellow at the George Washington Institute for Public Policy who has discussed net neutrality with Chairman Pai and congressional Republicans. “If he takes away [the Title II rules], then Congress, if they are interested in regulating this space,” would have to craft legislation establishing who or what can write and enforce rules.

But Congress is so gridlocked that the chance of this happening are virtually nil -- a fact Washington veteran Chairman Pai is presumably aware of. Absent congressionally-granted authority, there's no entity that can legally enforce open internet violations.

“Clearly what the FCC is trying to do is deregulate the internet,” Surman said. “The same way [the Trump administration] is taking away the teeth of the EPA, it’s trying to do the same to the FCC.”

We'll be tracking this issue every step of the way. Read all about it in Headlines.

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